T Nation

Gay Marriage in Mass.. - a Twist

Interesting twist to the judge-mandated legislative action on gay marriage in the state where they actually dumped tea in the harbor because they hated monarchs. Will we see such a tea-dumping spirit again?

"Nearly three years ago, the Supreme Judicial Court of Massachusetts read between the lines of the state constitution to discover a right to same-sex marriage previously undetected across the decades. The court then gave the legislature six months to rewrite state law to accommodate its diktat.

On Wednesday, however, the same court suddenly rediscovered the humility so lacking in its previous foray into the marriage debate. Before the court was a case brought by the governor together with citizens who had presented an initiative to amend the state constitution and so define marriage as a pact between a man and a woman. The petitioners had gathered more than 150,000 signatures. According to the state constitution, the legislature must now vote twice on the measure in successive legislative sessions before the amendment can be put on the ballot for a vote by the electorate.

The constitution only requires that 25% of both houses of the legislature vote to put the measure on the ballot, a bar set deliberately low to ensure that the people would have their say in all but the most extreme cases. But the legislature has so far refused to vote on the measure at all. In November, its members recessed until next Tuesday, the last day of the current legislative session, and to all appearances the politicians intend to adjourn the session without voting on the measure at all–thus letting it die.

Departing Governor Mitt Romney has threatened to withhold approval of legislators’ raises for next year unless they vote on the initiative, but this has purely symbolic value. Thanks to a voter-passed constitutional amendment from 1998, legislators are guaranteed raises every two years. Yet this is that same constitutional-amendment procedure that is now being flouted by legislators who lack the votes to defeat the measure on a straight vote.
The petitioners sued the legislature for abrogating its constitutional duty, and the state Supreme Judicial Court took the case. In its ruling last week, it agreed that the legislature’s duty to vote on the measure was “unambiguous.” But it claimed to be powerless to compel a vote. So the Supreme Judicial Court of Massachusetts, whose own arrogation of power created this mess, has suddenly discovered the limits of its power to clean it up.

All in all, this is quite the political spectacle. First judges usurp the power of the legislature to dictate their own social policy. Then the legislature uses a procedural ruse to deny voters a say on the gay-marriage issue. And these are some of the same people who say Iraqis aren’t ready for democracy. "

http://www.opinionjournal.com/editorial/feature.html?id=110009459

LOL.

Damn those judges for “reading between the lines” that people should be equally free to do what they want, assuming it’s not criminal, even if they happen to be gay.

Yeah, damn evil liberal saying that two consenting adults have the right to enter into a legal contract that does not harm or (even affect) any nonconsenting others.

[quote]vroom wrote:
LOL.

Damn those judges for “reading between the lines” that people should be equally free to do what they want, assuming it’s not criminal, even if they happen to be gay.[/quote]

Let’s not re-open your painful lack of understanding of basic democratic separation of powers - that was hard enough to read for all of us the first time. And, this really has little to do with gay marriage per se. This is about separation of powers.

The point here is that the court has now spoken out of two mouths on legislative action - and may have undermined its agenda to push social policy by establishing a precedent that it really can’t command legislators to act.

What happens when the legislators sit on the law they are supposed to pass establishing gay marriage, or the governor sits on the signing of it? The court has already said it can’t compel legislators.

This is actually a fascinating question - and really has the chance to be a constitutional crisis, even though it is at the state level. When the court mandates a law be passed as a matter of equal protection, and the legislature looks into the eyes of the judiciary and says “nope” when the court has expressly said it has no ability to compel legislators to do anything, who wins?

Interesting, that is, if you have a smidge more than Vroom’s understanding of ordinary political science.

Great stuff. Gotta love politics.

[quote]thunderbolt23 wrote:
Let’s not re-open your painful lack of understanding of basic democratic separation of powers - that was hard enough to read for all of us the first time. And, this really has little to do with gay marriage per se. This is about separation of powers.[/quote]

Ahahahahahaha! I have to laugh, you are funny when you are trying to be mean.

[quote]
The point here is that the court has now spoken out of two mouths on legislative action - and may have undermined its agenda to push social policy by establishing a precedent that it really can’t command legislators to act.[/quote]

The point here is how much you are grasping at straws to try to support your opinion of the legal system.

[quote]
What happens when the legislators sit on the law they are supposed to pass establishing gay marriage, or the governor sits on the signing of it? The court has already said it can’t compel legislators.

This is actually a fascinating question - and really has the chance to be a constitutional crisis, even though it is at the state level. When the court mandates a law be passed as a matter of equal protection, and the legislature looks into the eyes of the judiciary and says “nope” when the court has expressly said it has no ability to compel legislators to do anything, who wins?

Interesting, that is, if you have a smidge more than Vroom’s understanding of ordinary political science.[/quote]

Aw, did I hurt your little feelings or something? It’s going to be a new year soon, maybe you could think about getting over it?

Zzzzzz.

It IS fascinating to watch these judges squirm on their own hook! Great thread, Thunder!

Vroom’s usual useless nonsense aside, here is a bit from the Boston Herald that contains a quote from the case that will be significant (bolded):

"The odds were nil that the Supreme Judicial Court would order lawmakers to vote on the proposed amendment to ban gay marriage. Instead, the justices did the only thing they could do.

In a unanimous opinion, the court yesterday gave lawmakers a rhetorical tongue-lashing, upbraiding the 109 representatives and senators who flouted their duty to vote on an amendment that would ban gay marriage, by voting to recess before taking a final vote.

The court also gave the Legislature a much-needed lesson in obeying the law and their oaths of office - a lesson it would be impossible for them to now ignore.

?The members of the General Court are the people?s elected representatives, and each one of them has taken an oath to uphold the Constitution of the Commonwealth,? wrote Justice John Greaney. ?Those members who now seek to avoid their lawful obligations, by a vote to recess without a roll call vote . . . ultimately will have to answer to the people who elected them.?

If the lawmakers had an ounce of respect for the people who elected them, they would accept the SJC?s unambiguous counsel when they reconvene on Jan. 2.

Yesterday?s opinion clarifies, beyond any doubt, what the Legislature?s duty is. It also serves as a sharp reminder of this Legislature?s supreme arrogance.

The framers of the initiative process never intended that a procedural vote could block an initiative, Greaney wrote. In fact, a ?Mr. Quincy? could barely conceive of it back in 1917. ?I do not believe we need to consider seriously that contingency or a defiance of the provisions of the amendment,? Greaney quoted the lawmaker as saying. Ah, but Mr. Quincy never met Mr. DiMasi or Mr. Barrios!

Despite the crystal-clarity with which the court interpreted the Legislature?s duty, it acknowledged there is no ?viable remedy? for its refusal to do it.

?Beyond resorting to aspirational language that relies on the presumptive good faith of elected representatives, there is no presently articulated judicial remedy for the Legislature?s indifference to, or defiance of, its constitutional duties,? Greaney wrote.

Those who defend the defiant lawmakers argue, unconvincingly, that the refusal to vote is some noble act of civil disobedience. They?re the same people who vest their authority in this same court?s decision to allow gay marriage. So which opinion is OK to ignore?

http://news.bostonherald.com/editorial/view.bg?articleid=174156

Can it be argued that the judicial command to create gay marriage was merely “aspirational language”?

The Massachusetts court - really where ground zero of the gay marriage issue is happening - has just created a constitutional mess.

Nuthunter is endorsing your viewpoint, that has to be a warning signal!!!

Quoting opinion pieces meant to stir up public emotion on the issue doesn’t mean anything.

The legislature will do what it wants to do… as we see in government all the time. There is no confusion here. They speak, or address issues, as they choose.

There is always the ability to vote during the next election if the public so chooses to punish these people.

This is just more bullshit being stirred up by the anti-gay folks, trying to make an issue out of nothing… by whining and crying about the fact they are having trouble getting what they want.

Boohoo.

[quote]vroom wrote:
Quoting opinion pieces meant to stir up public emotion on the issue doesn’t mean anything.[/quote]

The opinion piece was to add some commentary on the issue as well as lift a quote from the written opinion.

As for stirring up public emotion, the issue itself does that just fine. Every major paper in Boston has commented on it - it is ‘kind of a big deal’.

Surely you aren’t this dumb - that is precisely the problem. What if the legislature decides not to follow a court ruling that specifically compels a legislative result? There is absolutely confusion. What if after the United States Supreme Court ruled that homosexual sodomy was a guaranteed constitutional right, states continued to punish people for having gay sex? Would it be no big deal to you then?

I understand you have little more in your life than to be disagreeable for the sake of being annoying - your family must be proud - but this is an interesting issue that is of great significance, especially to those in the pro-gay marriage crowd.

If you don’t think so, no problem - don’t reply, and go start a thread on how intimidated you are by tall stacks of dirty laundry.

Well, that is a pathetic view of the situation - have you read on it at all? Likely not. The way to address the court’s ruling if you don’t like it is by attempting to amend the state constitution - that is just democracy at work. But then the legislature won’t do its constitutional duty - important checks on government are failing to operate. And the court has put in jeopardy its ability to effectuate social policy it has decided to push, which doesn’t sit easy with gay marriage advocates. Lots of issues here. Massachusetts-ians will think them important, even if some as smart as you - that is sarcasm you should be picking up on - doesn’t.

Over what? This is an interesting story. If you don’t find it to be so, you don’t have to post.

[quote]thunderbolt23 wrote:

Those who defend the defiant lawmakers argue, unconvincingly, that the refusal to vote is some noble act of civil disobedience.[/quote]

Either legislators are representatives of the people or they are elected oligarchs… they can’t have it both ways.

It’s a new year Thunderdolt, perhaps you could try to shelve the hatred for a little while?

Trying to refer to personal items to be insulting is just plain poor form, even when it isn’t extremely old subject matter.

Funny, don’t you think, that the separation of powers (which I obviously know nothing about) is precisely what prevents the courts from forcing the enactment of legislation?

The courts can suggest that laws be made to address issues, but they do not legislate nor direct the legislature. If and when the legislature does it’s job, writing laws, then the courts can interpret them or discard them.

Where’s the confusion?

If you can’t see this is a “big issue” because of the subject matter that it is dealing with, not because of the impasse, then you are simply a dupe. Congratulations.

Now, dig up some three year old issue and wave it around like some petulant child. You are pretty good at that little tactic…

[quote]nephorm wrote:

Either legislators are representatives of the people or they are elected oligarchs… they can’t have it both ways. [/quote]

Yes, Neph - exactly and well said.

And if a new crop gets elected in to replace the self-anointed oligarch-types, what are the chances the new ones thumb their nose at the court’s command to pass certain legislation? This might get worse before it gets better.

[quote]vroom wrote:
It’s a new year Thunderdolt, perhaps you could try to shelve the hatred for a little while?[/quote]

What hatred? You come into this thread mouthing with no intent to consider the issue presented, and my unkind reply to you for doing so is hatred? No, Vroom, sorry.

I am not sure what was all that personal - the fact that you seem to do little other than be disagreeable and vacantly arrogant is very much part of the public nature you present here. Don’t like my response - don’t act that way. But there was nothing particularly personal about it.

If that be so, then what good is a judicial recognition of any right? Then it has no legal force at all?

Good, then judicial rulings have no force of law at all. Then why bother having a judiciary at all, under your theory? Courts are not advisory boards. And you have a problem - you got really excited that the wise men on the bench saved us all from our own ignorance, but now you have said that their diktat is meaningless. How do you reconcile it?

[quote]thunderbolt23 wrote:
Good, then judicial rulings have no force of law at all. Then why bother having a judiciary at all, under your theory? Courts are not advisory boards. And you have a problem - you got really excited that the wise men on the bench saved us all from our own ignorance, but now you have said that their diktat is meaningless. How do you reconcile it?[/quote]

LOL. Think man, think.

If you commit a crime, the legal system will judge you, and dispense penalties as outlined in the legislation.

If we have a legislature that is busy creating laws that don’t have penalties, or an ability to be enforced, then the court will not be able to actively enforce such legislature, will it?

Generally, a constitution will guide the courts to determine what can and can’t be legislated, or whether legislation that it is interpreting while hearing a case, is in fact appropriate within the rules that have been defined.

If we wish to legislate that courts have authority to compel legislatures in some way, and that in itself doesn’t violate the constitutional division of powers, then we can do so.

Anyway, I don’t think it is very responsible to try to characterize what I’ve said in the way you have. The fact that you don’t agree with my opinion does not make it off-topic babble.

There is a founding basis to conclude that all men (people) are created equal and should be treated as such under the law. If you wish to argue otherwise, have at it, but calling that stance meaningless and off-topic simply means that you have allowed your passion to override your logic.

If a legislature decides, in their (supposed) wisdom, not to try to adjust a constitution, I don’t see that there is much the courts can damned well do about it… no matter how many interest groups choose to cry and whine about it, unless powers of enforcement (within the constitution) are granted.

The judiciary has power when it has been given power…

I don’t see what is so complex or so interesting about this, other than the fact that people are totally unable to let go of the underlying issue that is driving this.

Democracy doesn’t mean that everyone can get what they want. Half the population is going to be bitching and whining no matter which way these issues are decided. Get used to it. Be prepared for it to be the half you are in.

P.S. Notice I sidestepped a lot of genuinely off-topic blather? Feel free to use that tactic in your own posts.

[quote]vroom wrote:

If you commit a crime, the legal system will judge you, and dispense penalties as outlined in the legislation.

If we have a legislature that is busy creating laws that don’t have penalties, or an ability to be enforced, then the court will not be able to actively enforce such legislature, will it?

Generally, a constitution will guide the courts to determine what can and can’t be legislated, or whether legislation that it is interpreting while hearing a case, is in fact appropriate within the rules that have been defined.

If we wish to legislate that courts have authority to compel legislatures in some way, and that in itself doesn’t violate the constitutional division of powers, then we can do so.[/quote]

This is classic Vroom - several paragraphs that don’t do much other than summarize a few basic points but ignore the crux of the problem. Everyone knows full well the judiciary doesn’t stand behind legislators and make them vote like parents leaning over children to make sure they are doing their homework.

But there exists a deference to judiciary as a co-equal branch of government - legislatures respond to court rulings. What happens when that deference disappears?

Here is an example that might illustrate it better for you - what if the Bush administration decided to completely ignore the Supreme Court’s rulings on Gitmo detainees and decided to house them and provide trials in complete contravention to the court ruling? Your previous posts seem to suggest that wouldn’t be a big deal. And you would be wrong.

And the same example as above - what if states still criminally penalized those who engaged in gay sex after the Supreme Court said there was a right to gay sex? Would you be so supportive of the legislatures doing their own thing in complete defiance of the court’s ruling in that case as you are in this one?

This is in the realm of the political argument and that is fine, but that isn’t the issue at stake. This same set of circumstances could apply to any court ruling that announces a new right under a Constitution, or really an ruling at all.

You can be a pro-gay marriage champion as much as you like - that doesn’t do anything to resolve the kind of issues raised by this situation.

So I ask again - why bother with a judiciary at all on such questions? If what they say is mere rhetoric to be used merely at the option of the legislature, why not just send the judges home and save the money?

And also - why would you get excited that a court would rule thay gay marriage is an equal right (which you did) if that ruling is nothing more than an opinion equivalent to a post in an internet thread in terms of being authoritative as a matter of law?

Well, professors, lawyers, state politicians, journalists, and interested citizens have all begun writing on this topic. Perhaps you could just send a postcard to the state capital and inform them that “this is not a big deal, love Vroom”? One of the most concerned pieces I read was by a gay marriage advocate who is now concerned that a semi-populist backlash will erode gains that the state supreme court has made in Massachusetts on gay marriage, all because of the court’s Janus-like approach to these two seperate cases.

[quote]thunderbolt23 wrote:
Let’s not re-open your painful lack of understanding of basic democratic separation of powers - that was hard enough to read for all of us the first time. And, this really has little to do with gay marriage per se. This is about separation of powers.

[/quote]
Separation of powers is merely a pretext here. This is still an issue of denying people the right to a legal religious union and the rights which they would receive with this law–the same rights granted to a man and a woman together but not same genders.

How are we complaining about separation of powers but not discrimination which to me is a much bigger offense?

[quote]LIFTICVSMAXIMVS wrote:

Separation of powers is merely a pretext here. This is still an issue of denying people the right to a legal religious union and the rights which they would receive with this law–the same rights granted to a man and a woman together but not same genders. [/quote]

No, it is a matter of who decides - which is a separation of powers issue. You are merely assuming the conclusion that is up for debate - that there is a ‘right’ under law for homosexual unions. No problem, you can feel that way, but the question isn’t how you feel about it, but rather if we are to recognize that right under law, who should decide?

Further - and this is not new ground - your rationale fails to distinguish how far the ‘right’ goes. Does it apply to more than binary relationships? Is that a ‘right’ as well?

All of this is fantastic political debate - but the issue, to repeat, is who decides whether it is a right or not?

Again, you are being naive. There never has been this ‘right’, so it is difficult to complain there is discrimination. A right once created or recognized and then denied is legal discrimination.

So the concerns over separation of powers go to the definition of democratic government - do we have these new ‘rights’ announced by an oligarchy on high or do they emanate from elected representatives passing laws via democratic action?

People generally tend to think that is a pretty serious question.

[quote]thunderbolt23 wrote:
who should decide?
[/quote]

No one should be able to decide the fate of individuals in personal matters that do not harm others.

It isn’t a matter for the state to decide morality for the people. I don’t care what other people do as long as it doesn’t interfere with my own and others’ freedoms. I do not care who or what or how many (legal consenting adults).

Telling people that fall into a certain category they cannot benefit from the same advantages of marriage as I can is wrong. I don’t care who it comes from–the courts or the legislature. The basis of all of our laws come from an inherent belief that individuals should be free to act as individuals so long as they aren’t interfering with any other person(s)’ freedoms.